United States v. Ishmael Wahid

666 F. App'x 379
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 14, 2016
Docket15-3286/15-3305
StatusUnpublished

This text of 666 F. App'x 379 (United States v. Ishmael Wahid) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ishmael Wahid, 666 F. App'x 379 (6th Cir. 2016).

Opinions

ALICE M. BATCHELDER, Circuit Judge.

A federal grand jury indicted Ishmael Wahid and Brian Singleton, along with other co-conspirators, on various drug charges. It charged Wahid with conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(B). It charged Singleton with conspiracy to possess -with intent to distribute and to distribute heroin, cocaine base (crack) and cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A), and (b)(1)(B), and possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). It charged both with knowingly or intentionally using any communication facility in committing a felony in violation of 21 U.S.C. § 843(b).

Wahid and Singleton each entered into a written plea agreement, pleading guilty to conspiracy to possess with intent to distribute and distribution of heroin. In his plea agreement, Wahid retained the right to appeal the district court’s denial of his motion to suppress and the court’s determination of his Criminal History Category; he waived all other appeal rights. Singleton waived his rights to appeal, including the right to appeal his sentence. His waiver explicitly did not, however, waive his right to claim ineffective assistance of counsel.

Each appeals his conviction and sentence. For the following reasons, we affirm.

I.

From May 2010 to June 2014, Wahid, Singleton, and others conspired to deal drugs and performed various overt acts in furtherance of that conspiracy. In late 2013, the government obtained an authorized wiretap on the phone of Mark Makup-son, another member of the conspiracy. As a result of that wiretap, the government obtained Wahid’s cell phone number and conversations between Makupson and Wahid, and Makupson and Singleton. Police officers identified and apprehended Wahid after they traced his location using his cell phone number. Wahid moved to suppress the evidence obtained as a result of their tracking his cell phone; the court held a hearing on the motion and denied it. Wahid then pleaded guilty. At sentencing, the district court determined that Wahid was a career offender and calculated his offense level at 30, and his Criminal History Category as VI. The court imposed a sentence of 120 months’ imprisonment.

During the conspiracy, Singleton possessed loaded firearms, 37.11 grams of heroin, and 0.15 grams of cocaine powder. Singleton’s PSR calculated his base level offense at 30, added a two-point enhancement for possession of a firearm, and a three-point reduction for acceptance of responsibility. And although his written plea agreement recommended against a two-point enhancement for possession of a firearm, the court disagreed and included the two-level enhancement. The court found his total level offense to be 29 with a Criminal History Category of V, and imposed a sentence of 140 months’ imprisonment.

II.

Wahid reserved in his plea agreement the right to appeal the court’s denial of his motion to suppress. He argues that the government’s use of the evidence ob[382]*382tained from his cell site data violated his Fourth Amendment rights because he had an expectation of privacy in his location.

It is long-settled that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. As a result, a defendant seeking to suppress evidence must demonstrate that he personally has an éxpectation of privacy in the place searched, and that his expectation is reasonable.

United States v. Noble, 762 F.3d 509, 526 (6th Cir. 2014) (internal quotations and citations omitted).

We have held that there is no “reasonable expectation of privacy in the data given off by [a] cell phone.” United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012); see also United States v. Carpenter, 819 F.3d 880, 886 (6th Cir. 2016) (holding that the government’s collection of business records containing cell-site data was not a search under the Fourth Amendment). Several of our sister circuits agree. See United States v. Graham, 824 F.3d 421, 427-29 (4th Cir. 2016) (en banc); United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013). We do not have the authority to revisit the question of privacy in cell site data, see United States v. Yoon, 398 F.3d 802, 806 (6th Cir. 2005) (“The prior decision [of a Sixth Circuit panel] remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”) (internal quotation marks and citation omitted), and in any event, the government in this case also obtained a warrant to collect and examine radio signals emitted by his phone. The government did not violate Wahid’s Fourth Amendment rights by collecting or using that data.

III.

To designate Wahid a career offender, the district court relied on a 2003 conviction for possession of cocaine and having a weapon under disability, and a 1995 conviction for conspiracy to distribute and possess with intent to distribute cocaine. Wahid reserved the right to appeal the court’s determination of his Criminal History Category, and now argues that his 2003 conviction was voided and should not have been included in the guidelines calculus pursuant to U.S.S.G. § 4A1.2. “This Court reviews a district court’s factual findings concerning a defendant’s criminal history category, which must be based on a preponderance of the evidence, under the clearly erroneous standard of review.” United States v. Adkins, 729 F.3d 559, 569 (6th Cir. 2013) (internal quotation marks omitted).

Wahid’s claim is meritless. The Ohio Revised Code requires the court to impose a period of post-release control at the sentencing hearing when sentencing a defendant. When the court fails to do so (or does so only in a journal entry without mentioning the fact at the sentencing hearing), and where the defendant had already served his sentence, the defendant is not entitled to resentencing. State v. Bezak, 114 Ohio St.3d 94, 868 N.E.2d 961, 964 (2007), overruled in part by State v. Fischer,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
United States v. Donelle Fleming
239 F.3d 761 (Sixth Circuit, 2001)
United States v. James Smith
344 F.3d 479 (Sixth Circuit, 2003)
United States v. Min Yoon
398 F.3d 802 (Sixth Circuit, 2005)
United States v. Melvin Skinner
690 F.3d 772 (Sixth Circuit, 2012)
United States v. Regis Adkins
729 F.3d 559 (Sixth Circuit, 2013)
State v. Fischer
2010 Ohio 6238 (Ohio Supreme Court, 2010)
United States v. Courtney Noble
762 F.3d 509 (Sixth Circuit, 2014)
United States v. Quartavious Davis
785 F.3d 498 (Eleventh Circuit, 2015)
United States v. Timothy Sanders
819 F.3d 880 (Sixth Circuit, 2016)
United States v. Ramon Gaytan, Jr.
648 F. App'x 508 (Sixth Circuit, 2016)
United States v. Aaron Graham
824 F.3d 421 (Fourth Circuit, 2016)
State v. Bezak
868 N.E.2d 961 (Ohio Supreme Court, 2007)
In re the United States
724 F.3d 600 (Fifth Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
666 F. App'x 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ishmael-wahid-ca6-2016.